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had granted to him a charter of pardon, which he produced and prayed might be allowed by the court. “ All which being seen and understood by the court here, it is considered by the court that the said David Potter be discharged and go without day.

. Worcester Rec. 1808, fol. 540. About the same time, John Waite, having been indicted for forgery in the county of Cumberland, now in Maine, but then part of this Commonwealth, and found guilty, moved the court, as the report states, “ to set aside the verdict on the ground that he was improperly convicted.” The grounds of the motion were, that the defendant had since obtained evidence of confessions of the principal witness against him, which showed him to have been incompetent; and that, if he was competent, the defendant now had evidence further to discredit him. Chief Justice Parsons, in delivering the opinion of the court upon this motion, said: “In the trial of offences, but a small part of the trial is intrusted to the judges. The offender's peers are to pass on him; and to set aside a verdict merely at our discretion, and not on grounds which the law considers as sufficient, would be an arbitrary interference in judicial proceedings, and a violation of the important rights of jurors.” “ If there are any equitable or humane causes for relief, they belong not to us, but to the executive. Sentence must be passed on the verdict." To which the reporter adds, in a note, “ The sentence being respited, the defendant received a pardon from the governor and council, which, being produced at the next term of the court, was allowed, and the defendant discharged, ut audivi.Commonwealth v. Waite, 5 Mass. 261. A certificate of that pardon, from the office of the secretary of the Commonwealth, was produced at the argument of the present case.

At April term, 1807, in Middlesex, Joel Brown was tried before Sedgwick, J., and found guilty of larceny, and moved for a new trial for misdirection of the judge to the jury. The case was continued to November term, 1809, when, after argument upon this motion, Sedgwick, J., said, “ The conviction, I think, was right," and the other judges concurring, a new trial was refused. Commonwealth v. Brown, 4 Mass. 580. Before any further judgment or sentence, the defendant obtained and pleaded a pardon from the executive, and was thereupon discharged by the court. Middlesex Rec. 1810, fol. 6.

The published reports afford other instances in which, after overruling motions for a new trial and in arrest of judgment, or exceptions taken by the defendant at the trial, the court has suspended final judgment and sentence to await the effect of an application of the defendant to the governor for a pardon. Commonwealth v. Ladd, 15 Mass. 526; Commonwealth v. Mash, 7 Met. 472, 475.

Even when no judgment whatever has been rendered, and no action had by the court after the acceptance and recording of the verdict, no instance has been found in which a pardon granted after verdict has been disputed or disallowed. And our records show that in very many cases, upon the production of a pardon granted by the executive at that stage, the court has discharged the defendant. It will be sufficient to add one more case to those already cited.

At September term, 1811, in Worcester, held by Parsons, C. J., Sedgwick, Sewall, and Parker, JJ., Frederick Carpenter, who had been in

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dicted for uttering as true a forged and counterfeit paper, and pleaded not guilty, and been found guilty by the jury, and afterwards, being set to the bar, pleaded “ that no judgment ought to be rendered on the said verdict," because the governor and council had since granted him a pardon, "wherefore he prays that judgment on said verdict may be arrested, and

may be thereof discharged and permitted to go without day. Which being seen and fully understood by the court, it is thereupon ordered that the said Frederick Carpenter be discharged and go thereof without day.” Worcester Rec. 1811, fol. 409.

In Commonwealth . Green, 17 Mass. 515, in 1822, in which the power of the court to grant a new trial in a capital case, on motion of the defendant after conviction by the jury, was deliberately settled for the first time in this Commonwealth, upon full argument and advisement, Chief Justice Parker, in delivering judgment, clearly affirmed the authority of the court, upon being satisfied of an error in the rulings at the trial, to certify the fact to the executive and recommend a pardon, instead of granting a new

and declared that the latter course was the most proper, not from any doubt of the power of the executive to grant a pardon at that stage of the case, but because it was more consistent with public justice that the defendant should be tried again according to law than that he should be discharged for some irregularity perhaps not affecting the merits of the case, and more consistent with the rights of the defendant to have the judges correct an error committed by themselves or by others concerned in the trial, “ instead of being obliged to rely upon the disposition of the court to recommend a pardon, or of the executive power to grant it.” 17 Mass. 535, 536.

If the words of the constitutional provision could be deemed ambiguous, their interpretation must be held to be settled by the contemporaneous construction and the long course of practice in accordance therewith. Stuart v. Laird, 1 Cranch, 299, 309; Edwards v. Darby, 12 Wheat. 206, 210; Commonwealth v. Parker, 2 Pick. 550, 556.

It was argued for the Commonwealth that the defendant could not be said to be convicted at the time when this pardon was granted, because a bill of exceptions was then pending in this court to the rulings under which he had been found guilty, and that after pleading the pardon he might still prosecute his exceptions, and, if they should be sustained, have the verdict set aside. But it is within the election of the defendant whether he will avail himself of a pardon from the executive (be the pardon absolute or conditional); if he does not plead the pardon at the first opportunity, he waives all benefit of the pardon; if he does so plead it, he waives all other grounds of defence. Staunf. P. C. 150; J. Kel. 25; 4 Bl. Com. 402; United States v. Wilson, 7 Pet. 150. The pleading of the pardon in the superior court would therefore be ipso facto a waiver of his exceptions. A still more conclusive answer to this objection is, that at the time of the adoption of the constitution, and for many years afterwards, no bill of exceptions was permitted by law. It was first given to the rulings of a justice of this court by St. 1804, c. 105, $ 5; and to the rulings of the court of common pleas, by St. 1820, c. 79, § 5. The providing by the legislature of a new form of presenting questions of law to the court does not make the verdict of a jury, so long as it stands, less

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than a “conviction," and cannot abridge the prerogative of the executive under the constitution. Ex parte Garland, 4 Wallace, 333, 380.

The necessary conclusion is, that, having regard to the ordinary legal meaning of the words used in the constitution at the time of its adoption, to the presumption which the judiciary is always bound to make in favor of the validity of the acts of those intrusted with the highest authority in another department of the government, to the rule of interpretation in favor of the liberty of the subject, and to the practical construction given to this clause by the supreme executive of the Commonwealth and by our predecessors in this court from the beginning, the pardon of the defendant is valid, and he must be



[JANUARY, 1874.]



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The fact that a debtor was a resident of a state in rebellion, and prevented by act

of Congress and the war from paying a debt due to a creditor in a loyal state, is no ground for setting aside a sale made by virtue of a power in a trust deed given

to secure the payment of such debt. Former adjudications of this court reviewed.

APPEAL from the circuit court of the United States for the districts of Missouri.

Opinion of the court by

Mr. Justice MILLER. James J. Daly and Edward R. Chambers purchased of W. G. Elliott, in March, 1860, certain real estate in St. Louis, Mo. For the principal part of their purchase money they gave him their promissory notes, and to secure the payment of these notes, they made a deed of trust to Seth A. Ranlett, conveying the property thus purchased with authority to sell it in satisfaction of these notes, if they were not paid as they fell due.

The notes were assigned by Elliott to the appellant, the Washington University, and the money being unpaid and due, the real estate so conveyed was sold by Ranlett, in accordance with the terms of the trust deed, to the university, on the 9th day of December, 1872. The trustee made the university, which was a corporate body, a deed for the land, and the university afterwards sold it for value, to one Kimball.

Daly and Chambers were both citizens of the State of Virginia, residing in the county of Mecklenberg, when they bought the land of Elliott, and have resided there ever since. Chambers and Finch, assignees of Daly, who had been declared a bankrupt, filed the bill, on which the pres

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ent decree is founded, on the chancery side of the circuit court of the United States for the District of Missouri, to have the sale decreed void, and to have the proceeds of the sale of the land of the university to Kimball declared a trust fund for their use; and the court decreed accordingly.

The sole ground of this relief is, that the sale by the trustees took place during the late civil war, and that Daly and Chambers were citizens of the State of Virginia, resident within that part of the State declared by the President to be in a state of insurrection.

The argument is, that, inasmuch as all commercial intercourse was forbidden between the people of the Loyal States and those residing in the insurrectionary districts, both by virtue of the act of Congress and by the principles applicable to nations in a state of war, all processes for the collection of debts were suspended, and that the complainants being forbidden by these principals to pay the debt, there could be no valid sale of the land for such payment.

The case before us was not one of a sale by judicial proceeding. No aid of a court was needed or called for. It was purely the case of the execution of power by a person in whom a trust had been reposed in regard to real estate, the land, the trustee, and the cestui que trust all being, as they had always been, within a state whose citizens were loyally supporting the nation in its struggle with its enemies. The conveyance by complainants to Ranlett vested in him the legal title of the land, unless there was a statute of the State of Missouri providing otherwise ; and if there was such a statute, it still gave him full control over the title, for the purposes of the trust which he had assumed. No further act on the part of the complainant was necessary to transfer the title and full ownership of the property to a purchaser under a sale of the trustee.

The debt was due and unpaid. The obligation which the trustee had assumed on a condition had become absolute by the presence of that condition. If the complainants had both been dead, the sale would not bave been void for that reason, if made after the nine months during which a statute of Missouri suspends the right to sell in such cases. If they had been in Japan, it would have been no legal reason for delay. The power under which the sale was made was irrevocable. The creditor had both a legal and a moral right to have the power, made for his benefit, executed. The enforced absence of the complainants, if it be conceded that it was enforced, does not, in our judgment, afford a sufficient reason for arresting his agent and the agent of the creditor in performing a duty which both of them imposed upon him before the war began. His power over the subject was perfect; the right of the holder of the note to have him exercise that power was perfect. Its exercise required no intercourse, commercial or otherwise, with the complainants. No military transaction would be interfered with by the sale. The enemy, instead of being strengthened, would have been weakened by the process. The interest of complainants in the land might have been liable to confiscation by the government; yet we are told that this right of the creditor could not be enforced, nor the power of the trustee lawfully exercised. No authority in this country, or any other, is shown us for this proposition. It rests upon inference from the general doctrine of absolute non-intercourse be

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tween citizens of states which are in a state of public war with each other, but no case has been cited of this kind even in such a war.

It is said that the power to sell in the deed of trust required a notice of the sale in a newspaper; that this notice was intended to apprise the complainants of the time and place of sale, and that, inasmuch as it was impossible for such notice to reach complainants, no sale could be made. If this reasoning were sound, the grantors in such a deed need only go to a place where the newspaper could never reach him, to delay the sale indefinitely, or defeat it altogether. But the notice is not for the benefit of the grantor in the sense of notice to him. It is only for his benefit by giving notoriety and publicity of the time, the terms, and the place of sale, and the property to be sold, that bidders may be invited, competition encouraged, and a fair price obtained for the property. As to the grantor, he is presumed to know that he is in default

, and his property liable to sale at any time, and no notice to him is required.

But the authority of certain cases decided in this court is relied on, in which the effect of the late civil war is considered in judicial proceedings between parties residing on different sides of what has been called the line separating the belligerents.

The first of these is that of Hanger v. Abbott. The case laid down the proposition that when a citizen of a state, adhering during that war to the national cause, brought suit afterwards against a citizen residing, during the war, within the limits of an insurrectionary state, the period during which the plaintiff was prevented from suing by the state of hostilities should be deducted from the time necessary to bar the action under the statute of limitations. It decided nothing more than this. It did not even decide that a similar rule was applicable in a suit brought by the lat

a ter against the former ; and it decided nothing in the question now before us, even if the sale here had been under a judicial proceeding. 6 Wall. 532.

Another case is that of Dean v. Nelson, 10 Wallace, 158. If the present had been a sale under judicial order, that case would have some analogy to this, and some expressions more general than was intended may, as this court has already said, tend to mislead. That case was a proceeding within an insurrectionary district, but held by our military forces, in a court established by military orders alone. It was a proceeding to foreclose a mortgage on personal property, and it was instituted against parties who had been expelled by military force from their residence, and who were forbidden absolutely by the order which expelled them, and which was addressed to them by name, from coming back again within the lines of the military authority which organized the court. Inasmuch as, with

. out their consent, and against their will, they were thus driven from their houses, and forbidden to return, by the arbitrary though probably necessary act of the military power, we held that a judicial decree by which their property was sold during the continuance in force of this order was void as to them. To that doctrine we adhere, and have repeated it at this term in the case of Lasere v. Rochereau.

But this court has never decided, nor intentionally given expression to the idea that the property of citizens of the Rebel States, located in the Loyal States, was, by the mere existence of the war, exempted from judi

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